No. 80-270 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

PETER EVANGELINE and 

DIMITRI EVANGELINE 

Plaintiffs and Appellants, 

BILLINGS CYCLE CENTER, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone. 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellants: 

Nye Law Firm, Billings, Montana 

Jerrold L. Nye argued, Billings, Montana 

For Respondent: 

McNamer, Thompson & Cashmore, Billings, Montana 

Charles R. Cashmore argued, Billings, Montana 

Submitted: March 25, 1981 

Decided: April 15, 1981. 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the 

Court. 

Plaintiffs, father and son, brought an action in the 

District Court of the Thirteenth Judicial District, each 

seeking damages for personal injury. Jury trial resulted in 

a defendant's verdict. Plaintiffs appeal. 

Plaintiff, Peter Evangeline, hereafter referred to as 

"father", purchased a used 1975 Yamaha dirt bike from defendant 

on June 16, 1978. The bike was purchased for the use of 

Dimitri Evangeline, hereafter referred to as "son". 

One day following the purchase the son, then age 12, 

attempted to ride the bike around an oval track located at 

plaintiffs' home. On two occasions the son had the bike 

slide out from under him due to his inability to slow the 

bike. He testified that he did not know whether the brakes 

worked. The record is unclear about what caused these 

spills. 

The father then tried to ride the bike. He too spilled 

for some unexplained reason. He testified that he did not 

know if his foot was on the brake. The father then remounted 

the bike for a second try. As the father was approaching a 

curve, he looked down to see if his foot was on the brake 

and the rest is best described in his own words: "By the 

time I looked up I had already gotten to the lateral ditch-- 

that bottom one--and I couldn't get out of it." "And by the 

time I looked up, it was too late to do anything because I 

hit that ditch, and I was flying in the air." 

The father went to the hospital, and the following day 

the son attempted to ride again, this time in the company of 

a friend. The sequence of events preceding this second 

accident was related by the son at trial: "We started 

racing there when I went down to the Hesper ~oad--toward 
them ditches. I looked down to see if my foot was on the 

thing, and by that time I was at the ditch. I tried to lean 

the bike over, and the front wheel caught in that first 

ditch; and me out onto the road and my bike into the second 

ditch." The son was injured. 

The father and son brought this action in strict liability, 

and alternately, in negligence. The trial court reserved 

ruling on strict liability until hearing all of the evidence. 

The court then decided to submit the case on negligence 

only. The jury was also instructed on the affirmative 

defenses of contributory negligence and assumption of risk. 

On special findings, the jury concluded that the negligence 

of each plaintiff was a proximate cause of each accident. 

The jury further found that the defendant was not negligent. 

Plaintiffs claim the following error: 

I. Failure of the trial court to submit strict liability. 

2. Failure of the trial court to make a pretrial 

ruling on strict liability. 

3. The instructions on assumption of risk were erroneous. 

4. The trial court's comments during trial were prejudicial. 

The trial court may reserve ruling on strict liability 

until hearing evidence, as the evidence may well determine 

what liability theories are appropriate. We do not here 

rule on the applicability of strict liability to a used 

product. 

We resolve this question on factual issues and, therefore, 

no authority is cited. If an instruction on strict liability 

had been given under the evidence adduced at trial, the 

result would necessarily have been the same. 
Plaintiffs claim that defective brakes were the result 

of improper brake adjustment. No other defect can be found 

in the evidence. We are asked to hold that defective adjustment of brakes is different from negligent adjustment of 

brakes. We feel that, given these facts, the proof would be 

the same for either strict liability or negligence. The 

jury found defendant was not negligent in adjusting the 

brakes. The same finding would preclude defect arising out 

of the brake adjustment. 

The testimony of both the father and son fails to 

establish a causal relationship between claimed brake 

maladjustment and accident. In each case the bike hit a 

ditch while the rider was looking down to see if he was 

engaging the brake. 

We hold that plaintiffs could not have- been prejudiced by 

the court's failure to instruct on strict liability because: 

(1) In this particular case the jury's finding of no negligence 

on the part of the defendant in adjusting the brakes would 

foreclose a finding of defect by reason of brake maladjustment. 

(2) Plaintiffs did not carry their burden to establish a 

causal relationship between brake maladjustment and the 

accident in that the testimony fails to prove that the 

accident was caused by defective brakes rather than caused 

by the bike hitting the ditch at a time the driver was 

una ttentive . 

Likewise, since the jury found the defendant to be not 

negligent, any error in instructions on affirmative defenses 

would be harmless. Therefore, we need not review the instructions pertaining to assumption of risk. 

Plaintiff claims error in the trial court's following 

remark to trial counsel: 
"THE COURT: Well, you managed to confuse me. Is 

the purpose--are you trying to impeach this man or 

what? " 

Plaintiffs-did not ask for a mistrial, nor did counsel 

request the court for an admonition. Further, the remark is 

not sufficiently prejudicial to require a new trial. 

The judgment is affirmed. 

We concur: 

L -- Justices